Final Order 1

Order Details: Chamber summons
Pdf Text: Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
1 Date 17.12.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.802 of 2018
IN
SUIT NO. 4834 of 2010
(H.C. SUIT NO. 3205 OF 2010)
(CNR NO.MHCC01 0056952018)
Diana Vincent Mendes & Ors . .. Plaintiffs.
Versus
Allwyn Joseph D’costa & Ors. .. Defendants
Appearances :
Ld. Adv.Darshit Jain a/w Vikas Saindane for plaintiff.
Ld. Adv.Geeta P.Sonawane a/w Srushti Thorat i/b Denzil
Dmello for defendant no.1 and 2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge.
C.R. No. : 7
Dated : 17.12.2019
ORDER
1. The plaintiffs have filed instant Chamber Summons for
amendment of plaint as per schedule. It is the contention of the
plaintiff that they have filed instant suit seeking declaration that
Gift Deed dated 26.10.2006 is null and void.
2. It is contended by the plaintiffs that they have taken out
Notice of Motion No. 298 of 2011 for interim injunction.
However, the aforesaid Notice of Motion came to be dismissed
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
2 Date 17.12.2019
vide, order dated 24.02.2015 on the ground that plaintiff failed to
seek releif of permenant injunction against defendant. The
plaintiff, being aggrieved by the aforesaid order dated 24.02.2015,
filed A.O. No. 694 of 2015 before the Hon’ble High Court.
However, the said AO. No. 694 of 2015 came to be dismissed as
withdrawn by order dated 19.03.2018. In the meantime issues are
framed in the suit and accordingly the plaintiff filed their affidavit
of Examinationinchief. The stage of admission and denial is yet
to complete and therefore, the crossexamination is yet to begin.
3. It is contended by the plaintiff that therefore, immediately
after withdrawal of the aforesaid A.O. No. 694 of 2015 within one
month, they have filed instant Chamber Summons seeking
permission to amend the plaint and to add prayer of permenant
injunction. It is contended by the plaintiff that the foundation for
the relief of the injunction which are proposed to be amended
already existing in the plaint. Therefore, on the basis of advice
given to the plaintiff and by way of abandoned precaution, the
plaintiff seeking to amend the plaint and plaintiffs are ready to pay
additional court fee.
4. It is contended by the plaintiff that admendment sought is by
way of abandoned precaution and also to avoid multiplicity of
proceedings. The plaintiffs are not introducing any new case by
way of proposed amendments. If the amendment is allowed, the
same would not resulting change in nature of the suit and no
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
3 Date 17.12.2019
prejudice would caused to the defendant. Hence, plaintiff prayed
for allowing the present Chamber Summons. The plaintiffs in
support of their contentions relied on the following judgments ...
a) M/s. Ganesh Trading Co. V/s. Moji Ram, reported in AIR
1978 Supreme Court 484,
b) Jai Jai Ram Manohar Lal V/s. National Building Material
Supply, Gurgaon, reported in 1969(1) Supreme Court
Cases 869,
c) B.K.N.Pillai V/s. V.P.Pillai & Anr., reported in AIR 2000
Supreme Court 614,
d) L.C.Hanumanthappa V/s. H.B. Shivakumar, reported in
(2016) 1 Supreme Court Cases 332,
e) Chakreshwari Construction Private Limited V/s. Manohar
Lal, reported in (2014) 5 Supreme Court Cases 212,
f) Sampath Kumar V.s. Ayyakannu & Anr., reported in AIR
2002 Supreme Court 3369.
5. The Chamber Summons is opposed by the defendant by
filing their say. It is contended by the defendant that plaintiffs are
attempting to fill up the lacuna in thier plaint which is not
permissible at belated stage. More particularly when the trial has
already been commenced. It is contended by the defendant that
there is a considerable delay in filing instant Chamber Summons.
It is conteded by the defendant that the plaintiff prayed for similar
relief in the Notice of Motion No. 298 of 2011 which was
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
4 Date 17.12.2019
dismissed on merit. The aforesaid order attend its finality as the
plaintiffs withdrawn the A.O. No. 694 of 2015. The plainitff failed
to assign any sufficient reason for the delay. The defendants in
support of their contentions relied on the following judgments....
a) Nandyala Sridevi V/s. Gottimukkala Satyanarayana Raju
decided by Hon’ble Telangana High Court on 30.11.2018,
b) J. Samuel & Ors. V/s. Gattu Mahesh & Ors. decided by
Hon’ble Supreme Court of India on 16.01.2012,
c) Kailash Devi Khanna & Ors. V/s. D.D.Global Capital Ltd.
& Ors., decided by Hon’ble Delhi High Court on
28.08.2019.
6. I have persued Chamber Summons, reply as well as plaint.
The plaintiff filed instant suit seeking following reliefs :
(a) This Hon’ble Court be pleased to declare that the Gift
Deed dated 26.10.2006 bearing registration No. BDR
15/7892/2006 is null and void.
(b) This Hon’ble Court be pleased to direct the defendant no.
1 and 2 to return the said original Gift Deed dated
26.10.2006 to the plaintiff.
(c) This Hon’ble Court be pleased to restrain by an order of
permanent mandatory injunction the defendant no. 3,
their officers, agents, servants or any other person/s
claiming through the defendant no. 3 from acting upon
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
5 Date 17.12.2019
the said Gift Deed dated 26.10.2006 bearing Registration
No. BDR15/7892/2006 by transferring the suit premises
i.e. Flat No. 202, 2nd floor, Juhu Blossom CHS Ltd., 60
60A, Malvel Gonsalvis Marg, Bandra, Mumbai – 400 050
on the basis of said Gift Deed.
7. The plaintiff by way of instant Notice of Motion is seeking
relief of permanent injunction restraining the defendant no. 1 and
2 from acting on the Gift Deed dated 26.10.2006 and or creating
third party interest. It is well settled law that the amendment
could be allowed at any stage of the proceeding provided, it should
goes to the root of matter and necessary to adjudicate lis between
the parties. However, it is vehemently argued by the Ld. Advocate
for the defendant that in the present matter, the proposed
amendment would not be helpful to decide the lis between the
parties. It is further aruged that if the proposed amendment is
allowed, the plaintiff will again filed Notice of Motion seeking ad
interim relief. It is further argued by the Advocate for the
defendant that the plaintiff failed to assign any sufficient reason
and failed to show due diligence in filing instant Chamber
Summons.
8. Per contra Ld. Advocate for the plaintiffs argued that their
claim is in respect of challenge to the Gift Deed for which the relief
is already claimed. It is due to the wrong drafting that relief of
permanent injunction is not claimed. The plaintiff can also filed
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
6 Date 17.12.2019
separate suit for permanent injunction. However, in order to avoid
the multiplicity of proceeding, he is seeking same relief by way of
amendment.
9. Per contra Ld. Advocate for plaintiff argued that in the
present case due diligence has not come into play. Even otherwise
also since they have withdrawn A.O. No. 694 of 2015 from the
Hon’ble High Court immediately within one month, they have
preferred the present Chamber Summons. Hence, there is no
delay in filing present Chamber Summons.
10. It appears to me that earlier Notice of Motion No. 298 of
2011 was came to be dismissed by my Predecessor on the ground
that the plaintiff failed to pray for permanent injunction.
Therefore, interim injunction could not be granted. It appears to
me that the earlier Notice of Motion came to be dismissed on the
technical ground. The aforesaid defect can be cured by way of
present Chamber Summons. The plaintiff can also filed separate
suit for permanent injunction but in view of the order 2 Rule 2, the
plaintiff to unite all reliefs in the same suit and he has already lay
down foundation of its relief in the main suit. Hence, it would be
unjustified directing the plaintiff to file separate suit. Moreover,
the proposed amendment do not change the nature of the suit and
no prejudice would be caused to the defendant, if Chamber
Summons is allowed. Thus, in my view, the plaintiff made out the
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
7 Date 17.12.2019
case for allowing Chamber Summons. Thus, I proceed to pass the
following order :
ORDER
1. Chamber summons No.802 of 2018 is hereby allowed in
terms of prayer clause (a).
2. Plaintiffs to carryout necessary amendment as per schedule
within 14 days from the date of order.
3. Plaintiff to pay additional court fee, if any.
4. Parties to bear their own cost.
5. Chamber summons No. 802 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Judge
City Civil & Sessions Court
Dated : 17.12.2019 Gr. Bombay.
Dictated on : 17.12.2019
Transcribed on : 17.12.2019
Draft submitted on : 17.12.2019
Checked on : 18.12.2019
Signed on : 18.12.2019
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Chamber Summons 802-18 In Suit No. 4834- 2010
H.C.Suit No. 3205 of 2010.
8 Date 17.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/12/2019 at 5.15 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
17/12/2019
JUDGMENT/ORDER signed by
P.O. on
18/12/2019
JUDGMENT/ORDER uploaded
on
18/12/2019
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